1995 Wisconsin Act 227

227,596 Section 596 . 144.442 (title) of the statutes is renumbered 292.31 (title).

227,597 Section 597 . 144.442 (1) (intro.) and (a) to (c) of the statutes are repealed.

227,598 Section 598 . 144.442 (1) (cm) of the statutes is repealed.

227,599 Section 599 . 144.442 (1) (d) of the statutes is renumbered 292.01 (18) and amended to read:

292.01 (18) “Site or facility" means, except in sub. (9m) ss. 292.35 and 292.61, an approved facility, an approved mining facility, a nonapproved facility or a waste site.

227,600 Section 600 . 144.442 (1) (e) of the statutes is renumbered 292.01 (21).

227,601 Section 601 . 144.442 (1m) of the statutes is renumbered 289.67 (1), and 289.67 (1) (a), (cp), (e), (f) and (g), as renumbered, are amended to read:

289.67 (1) (a) Imposition of fee. Except as provided under par. (f), a generator of solid or hazardous waste shall pay an environmental repair fee for each ton or equivalent volume of solid or hazardous waste which is disposed of at a licensed solid or hazardous waste disposal facility. If a person arranges for collection or disposal services on behalf of one or more generators, that person shall pay the environmental repair fee to the licensed solid or hazardous waste disposal facility or to any intermediate hauler used to transfer wastes from collection points to a licensed facility. An intermediate hauler who receives environmental repair fees under this paragraph shall pay the fees to the licensed solid or hazardous waste disposal facility. Tonnage or equivalent volume shall be calculated in the same manner as the calculation made for tonnage fees under s. 144.441 (3) 289.62 (1).

(cp) Amount of environmental repair fee. Notwithstanding par. (cm) and except as provided under par. (d), the environmental repair fee imposed under par. (a) is 30 cents per ton for solid or hazardous waste, other than high-volume industrial waste, as defined in s. 144.44 (7) (a) 1., disposed of on or after January 1, 1988, but before July 1, 1989, and 50 cents per ton disposed of on or after July 1, 1989.

(e) In addition to other fees. The environmental repair fee collected and paid under par. (b) is in addition to the base fee imposed under sub. (2), the surcharge imposed under sub. (3), the tonnage fee imposed under s. 144.441 (3) 289.62 (1) and the groundwater, solid waste capacity and well compensation fees imposed under s. 144.441 (7) 289.63.

(f) Exemption from environmental repair fee; certain materials used in operation of the facility. Solid waste materials approved by the department for lining, daily cover or capping or for constructing berms, dikes or roads within a solid waste disposal facility are not subject to the environmental repair fee imposed under par. (a), except that foundry sands or shredder fluff approved for use under s. 144.44 (3) (bh) or (4e) 289.30 (5) or 289.31 (9) are subject to the environmental repair fee.

(g) Reporting period. The reporting period under this subsection is the same as the reporting period under s. 144.441 (3) 289.62 (1). The owner or operator of any licensed solid or hazardous waste disposal facility shall pay environmental repair fees required to be collected under par. (b) at the same time as any tonnage fees under s. 144.441 (3) 289.62 (1).

227,602 Section 602 . 144.442 (1s) of the statutes is renumbered 289.67 (2), and 289.67 (2) (a), (c) 3. and (d), as renumbered, are amended to read:

289.67 (2) (a) A generator of hazardous waste who is required to report annually on hazardous waste activities according to rules promulgated under s. 144.62 (8) 291.05 (6) (b) shall pay an annual environmental repair fee.

(c) 3. Hazardous wastes which are removed from a site or facility to repair environmental pollution. In this subdivision, “site or facility" has the meaning given in s. 292.01 (18).

(d) The department shall assess fees under par. (a) on the basis of the generator's report that is submitted according to the rules promulgated under s. 144.62 (8) 291.05 (6) (b).

227,603 Section 603 . 144.442 (2) of the statutes is renumbered 289.67 (3), and 289.67 (3) (d), as renumbered, is amended to read:

289.67 (3) (d) Reduction of base fee; monitoring. This paragraph applies to a nonapproved facility which is subject to the $1,000 base fee under par. (b) 2. and which is required by the department to conduct monitoring under s. 144.44 (4) (f) 289.31 (7). The base fee under par. (b) 2. shall be reduced by the cost of monitoring for the calendar year to which the base fee applies, or $900, whichever is less.

227,604 Section 604 . 144.442 (3) of the statutes is renumbered 289.67 (4), and 289.67 (4) (a) and (b), as renumbered, are amended to read:

289.67 (4) (a) Imposition of environmental repair surcharge. If the owner or operator of a nonapproved facility is required to pay a tonnage fee under s. 144.441 (3) 289.62 (1), the owner or operator shall pay to the department an environmental repair surcharge for each calendar year.

(b) Amount of environmental repair surcharge. 1. With respect to solid or hazardous waste disposed of at a nonapproved facility for which the owner or operator enters into an agreement with the department to close the facility on or before July 1, 1999, the owner or operator shall pay to the department an environmental repair surcharge equal to 25% of the tonnage fees imposed under s. 144.441 (3) 289.62 (1). The 25% surcharge first applies for the calendar year in which the owner or operator enters into a closure agreement. If the owner or operator fails to comply with the closure agreement, the department shall collect the additional tonnage fees which would have been paid by the owner or operator under subd. 2. in the absence of the closure agreement.

2. With respect to solid or hazardous waste disposed of at a nonapproved facility for which the owner or operator has not entered into an agreement with the department to close the facility on or before July 1, 1999, the owner or operator shall pay to the department an environmental repair surcharge equal to 50% of the tonnage fees imposed under s. 144.441 (3) 289.62 (1).

227,605 Section 605 . 144.442 (4) of the statutes is renumbered 292.31 (1), and 292.31 (1) (d) 3., as renumbered, is amended to read:

292.31 (1) (d) 3. The identity of subsidiary or parent corporations, as defined in sub. (9) 292.31 (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.

227,606 Section 606 . 144.442 (5) of the statutes is renumbered 292.31 (2), and 292.31 (2) (a) to (c) and (f), as renumbered, are amended to read:

292.31 (2) (a) Methods for preparing the inventory and conducting the analysis under sub. (4) (1).

(b) Methods for remedial action under sub. (6) (3).

(c) Methods and criteria for determining the appropriate extent of remedial action under sub. (6) (3).

(f) Means of making the most effective use of the grant program under sub. (9m) s. 292.61 so as to encourage the greatest number of political subdivisions to undertake remedial action on property that they own.

227,607 Section 607 . 144.442 (6) of the statutes is renumbered 292.31 (3), and 292.31 (3) (b) 7., (d) and (f), as renumbered, are amended to read:

292.31 (3) (b) 7. The department may provide temporary or permanent replacements for private water supplies damaged by a site or facility. In this subdivision, “private water supply" means a well which is used as a source of water for humans, livestock, as defined in s. 95.80 (1) (b), or poultry.

(d) Emergency responses. Notwithstanding rules promulgated under this section, the hazard ranking list, the considerations for taking action under par. (c) or the remedial action schedule under par. (cm), the department may take emergency action under this subsection and subs. (4) (1) and (8) (7) at a site or facility if delay will result in imminent risk to public health or safety or the environment. The department is not required to hold a hearing under par. (f) if emergency action is taken under this paragraph. The decision of the department to take emergency action is a final decision of the agency subject to judicial review under ch. 227.

(f) Notice; hearing. The department shall publish a class 1 notice, under ch. 985, prior to taking remedial action under this subsection and subs. (4) (1) and (8) (7), which describes the proposed remedial action and the amount and purpose of any proposed expenditure. Except as provided under par. (d), the department shall provide a hearing to any person who demands a hearing within 30 days after the notice is published for the purpose of determining whether the proposed remedial action and any expenditure is within the scope of this section and is reasonable in relation to the cost of obtaining similar materials and services. The department is not required to conduct more than one hearing for the remedial action proposed at a single site or facility. Notwithstanding s. 227.42, the hearing shall not be conducted as a contested case. The decision of the department to take remedial action under this section is a final decision of the agency subject to judicial review under ch. 227.

227,608 Section 608 . 144.442 (6m), (6r) and (7) of the statutes are renumbered 292.31 (4), (5) and (6) and amended to read:

292.31 (4) Monitoring costs at nonapproved facilities owned or operated by municipalities. Notwithstanding the inventory, analysis and hazard ranking under sub. (4) (1), the environmental response plan prepared under sub. (5) (2) or the environmental repair authority, remedial action sequence and emergency response requirements under sub. (6) (3), the department shall pay that portion of the cost of any monitoring requirement which is to be paid under s. 144.44 (4) (f) 5. 289.31 (7) (f) from the appropriation under s. 20.370 (2) (dv) prior to making other payments from that appropriation.

(5) Municipal incinerator ash testing. Notwithstanding the inventory, analysis and hazard ranking under sub. (4) (1), the environmental response plan prepared under sub. (5) (2), the environmental repair authority, remedial action sequence and emergency response requirements under sub. (6) (3), or the monitoring costs under sub. (6m) (4), the department shall pay the cost incurred by a municipality after June 30, 1986, and before January 30, 1988, for testing required to determine whether the ash from a municipally owned incinerator is hazardous. The department shall make payments under this subsection from the appropriation under s. 20.370 (2) (dv) prior to making other payments from that appropriation.

(6) Payments from the investment and local impact fund. The department may expend moneys received from the investment and local impact fund for the purposes specified under sub. (6) (3) only for approved mining facilities and only if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments. The amount expended by the department under this subsection may not exceed the balance in the environmental fund that is available for environmental repair at the beginning of that fiscal year or 50% of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.

227,609 Section 609 . 144.442 (8) of the statutes is renumbered 292.31 (7), and 292.31 (7) (a), as renumbered, is amended to read:

292.31 (7) (a) The department may advise, consult, assist and contract with other interested persons to take action to implement the federal comprehensive environmental response, compensation and liability act of 1980, 42 USC 9601, et seq., in cooperation with the federal environmental protection agency. These actions include all of the actions under subs. (4) (1) to (6) (3). The department may enter into agreements with the federal environmental protection agency.

227,610 Section 610 . 144.442 (9) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 292.31 (8), and 292.31 (8) (b) 1., (d), (h) and (i), as renumbered, are amended to read:

292.31 (8) (b) 1. This subsection does not apply to the release or discharge of a substance which is in compliance with a permit, license, approval, special order, waiver or variance issued under this chapter or ch. 30, 31 or 147 283, or under corresponding federal statutes or regulations.

(d) Right of action. A right of action shall accrue to the state against any person responsible under par. (c) if an expenditure is made for environmental repair at the site or facility or if an expenditure is made under sub. (8) (7).

(h) Cleanup agreements; waiver of cost recovery. The department and any person who is responsible under par. (c) may enter into an agreement regarding actions which the department is authorized to take under sub. (6) (3). In the agreement, the department may specify those actions under sub. (6) (3) which the responsible person may take. As part of the agreement, the department may agree to reduce the amount which the state is entitled to recover under this subsection or to waive part or all of the liability which the responsible person may have under this subsection.

(i) Lien. Any expenditures made by the department under sub. (4), (6) (1), (3) or (8) (7) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 144.76 (13) 292.81.

227,611 Section 611 . 144.442 (9m) of the statutes is renumbered 292.61, and 292.61 (1) (intro.), (3) (b) 4. and (5), as renumbered, are amended to read:

292.61 (1) Definitions. (intro.) In this subsection section:

(3) (b) 4. A statement of whether the political subdivision intends to use the cost recovery procedure in s. 144.4422 292.35. If the political subdivision indicates in its application that it intends to use the cost recovery procedure in s. 144.4422 292.35, the department may not approve the application for a remedial action grant until the political subdivision completes the procedures under s. 144.4422 292.35 (2g) and (2r).

(5) Subrogation. The state is subrogated to the rights of a political subdivision that obtains an award under this section in an amount equal to the award. All moneys recovered under this paragraph subsection shall be credited to the environmental fund for environmental repair.

227,612 Section 612 . 144.442 (10) and (11) of the statutes are renumbered 292.31 (9) and (10), and 292.31 (10) (b), as renumbered, is amended to read:

292.31 (10) (b) If a person takes any remedial action at a site or facility, whether or not an agreement is entered into with the department under sub. (9) (8) (h), any agreement and the action taken are not evidence of liability or an admission of liability for any potential or actual environmental pollution.

Note: Section 144.442 (10) and (11) both contain references to “this section". Current s. 144.442 contains provisions related to environmental repair fees and remedial action. It is apparent that s. 144.442 (10) and (11) refer only to the remedial action provisions of the statute. Therefore, s. 144.442 (10) and (11) are renumbered to ch. 292, and are not duplicated in s. 289.67, which establishes the environmental repair fees.

227,613 Section 613 . 144.4422 (title) and (1) (intro.) of the statutes are renumbered 292.35 (title) and (1) (intro.).

227,614 Section 614 . 144.4422 (1) (a) of the statutes is repealed.

227,615 Section 615 . 144.4422 (1) (b), (c), (d), (e), (f) and (g) of the statutes are renumbered 292.35 (1) (b), (c), (d), (e), (f) and (g), and 292.35 (1) (f), as renumbered, is amended to read:

292.35 (1) (f) “Site or facility" has the meaning given in s. 144.442 (9m) (a) 2. 292.61 (1) (b).

227,616 Section 616 . 144.4422 (2), (2g), (2r), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (13) of the statutes are renumbered 292.35 (2), (2g), (2r), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (13), and 292.35 (2g) (b) 3., (7) and (9) (b) and (bm), as renumbered, are amended to read:

292.35 (2g) (b) 3. The identity of subsidiary or parent corporations, as defined in s. 144.442 (9) 292.31 (8) (a) 3., of any person who may be a responsible party.

(7) Responsible parties subject to an agreement or recommendation. A responsible party that enters into an agreement under sub. (5) with a political subdivision or that accepts the umpire's recommendation under sub. (6), if the political subdivision does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 144.442 (9) or 144.76 292.11 (7) (b) or 292.31 (8), or to the political subdivision for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 144.76 292.11 (7) (c) for the discharge that is the subject of the agreement or recommendation.

(9) (b) 1. Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 144.76 (9m) and (9s) 292.21, a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a political subdivision for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a political subdivision against the responsible party for costs listed in this subdivision.

2. Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 144.76 (9m) and (9s) 292.21, a responsible party is liable for a portion of any unreimbursed costs, as determined under pars. (c) to (e), incurred by this state in approving and supervising a remedial action funded under s. 144.442 (9m) (c) 292.61 (3) and for the costs of a grant under s. 144.442 (9m) (c) 292.61 (3). A right of action shall accrue to this state against the responsible party for costs listed in this subdivision.

(bm) Paragraph (b) does not apply with respect to a discharge if the discharge was in compliance with a permit license, approval, special order, waiver or variance issued under ss. 144.30 to 144.426 or ch. 147 283 or 285 or under corresponding federal statutes or regulations.

227,617 Section 617 . 144.443 (title) and (1) (intro.) of the statutes are renumbered 289.41 (title) and (1) (intro.).

227,618 Section 618 . 144.443 (1) (a) of the statutes is repealed.

227,619 Section 619 . 144.443 (1) (am) of the statutes is renumbered 289.41 (1) (am).

227,620 Section 620 . 144.443 (1) (b) of the statutes, as affected by 1995 Wisconsin Act 63, is renumbered 289.41 (1) (b), and 289.41 (1) (b) 1. and 2., as renumbered, are amended to read:

289.41 (1) (b) 1. Any business operated for profit and any public utility which is applying for or holds a license for the operation of a solid or hazardous waste disposal facility under s. 144.44 (4) 289.31 or 144.64 (2) 291.25 directly or through a subsidiary, affiliate, contractor or other entity if the business or public utility guarantees compliance with any closure and long-term care responsibilities of the subsidiary, affiliate, contractor or other entity.

2. Any business operated for profit and any public utility that is required to perform corrective action under s. 144.735 291.37.

227,621 Section 621 . 144.443 (1) (c) to (f) of the statutes are renumbered 289.41 (1) (c) to (f).

227,622 Section 622 . 144.443 (2) and (3) of the statutes are renumbered 289.41 (2) and (3), and 289.41 (2) (a), (c) and (d) and (3) (a) 5. and 6., as renumbered, are amended to read:

289.41 (2) (a) Disposal facilities. The owner or operator of a solid or hazardous waste disposal facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the closure and long-term care requirements specified in any rule, order, plan of operation or other plan approval during the period specified in s. 144.441 (2) sub. (1m) (b) or under s. 144.441 (2) sub. (1m) (f).

(c) Hazardous waste disposal, storage and treatment facilities. If corrective action is required under s. 144.735 291.37, the owner or operator of the hazardous waste facility to which the requirement applies shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the corrective action requirement.

(d) Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to s. 144.64 (2m) 291.29 shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the approved closure plan and, if applicable, the long-term care plan.

(3) (a) 5. A financial commitment satisfactory to the department to ensure that the owner or operator will comply with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 144.64 (2m) 291.29. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

6. If corrective action is required under s. 144.735 291.37, a financial commitment satisfactory to the department to ensure that the owner or operator will comply with the requirement. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

227,623 Section 623 . 144.443 (4) of the statutes, as affected by 1995 Wisconsin Act 63, is renumbered 289.41 (4), and 289.41 (4) (b), as renumbered, is amended to read:

289.41 (4) (b) Application. A company which seeks to establish proof of financial responsibility utilizing the net worth method shall submit an application to the department as a part of the initial license application, written submissions required under s. 144.735 291.37 or annual review procedure which includes a copy of the most recent annual audited financial statements which were distributed to owners, stockholders or other persons with a financial interest in the company and the opinion of an independent certified public accountant.

227,624 Section 624 . 144.443 (5) to (12) of the statutes are renumbered 289.41 (5) to (12), and 289.41 (6) (b), (9) (b) and (11) (a) (intro.) and 4., (am) (intro.) and 4. and (b) to (cm), as renumbered, are amended to read:

289.41 (6) (b) Net worth to closure, long-term care and corrective action cost ratio. The net worth of the company at the end of its most recently completed fiscal year equals or exceeds 6 times the estimated total cost of compliance with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 144.64 (2m) 291.29 plus the costs of any corrective action required under s. 144.735 291.37.

(9) (b) Inability to meet closure and long-term care or corrective action costs. If a public utility which utilizes the risk pool arrangement does not comply with the closure and long-term care requirements specified in any plan of operation or approved plan under s. 144.64 (2m) 291.29 or with any corrective action required under s. 144.735 291.37 and if the department or the department of justice is unable to obtain compliance with these requirements after appropriate legal action because of bankruptcy, insolvency or the financial inability of the utility to comply with these requirements, then the department is authorized to enter an assessment order.

(11) (a) Failure to comply with closure and long-term care requirements. (intro.) If the owner or operator of the facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 144.64 (2m) 291.29:

4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with the closure and long-term care requirements of the plan of operation or approved plan under s. 144.64 (2m) 291.29. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.

(am) Failure to comply with corrective action requirements. (intro.) If the owner or operator of the facility fails to comply with any corrective action requirements under s. 144.735 291.37:

4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with a corrective action required under s. 144.735 291.37. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.

(b) Compliance with closure and long-term care requirements. 1. If the owner or operator of a waste facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 144.64 (2m) 291.29, the department may take action or contract with a person to take action to comply with these requirements from moneys obtained for that purpose under par. (a).

2. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with long-term care requirements in the plan of operation after the requirement to provide proof of financial responsibility expires under s. 144.441 (2) sub. (1m) (b) or (f) and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a) 4., then the department may take action or contract with a person to take action to comply with the requirements even though no moneys have been obtained under par. (a).

(bm) Compliance with corrective action requirements. If the owner or operator of a waste facility fails to comply with any corrective action required under s. 144.735 291.37, the department may take action or contract with a person to take action to comply with a corrective action required under s. 144.735 291.37 from moneys obtained for that purpose under par. (am).

(c) Prevention of imminent hazard; closure and long-term care. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with the closure and any long-term care requirements in any plan of operation during the period for which the owner or operator is required to provide proof of financial responsibility, if the department determines that the failure to comply with these requirements presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a), then the department may take action or contract with a person to take action to comply with these requirements even though no moneys have been obtained under par. (a).

(cm) Prevention of imminent hazard; corrective action. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with any corrective action required under s. 144.735 291.37, if the department determines that the failure to comply with a corrective action requirement presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (am), then the department may take action or contract with a person to take action to comply with a corrective action required under s. 144.735 291.37 even though no moneys have been obtained under par. (am).

227,625 Section 625 . 144.444 of the statutes is renumbered 289.46, and 289.46 (1), as renumbered, is amended to read: